Koek v Griffiths - [2014] QCAT 198

CITATION:

Koek v Griffiths [2014] QCAT 198

PARTIES:	John Koek (Applicant)
v
Andrew Griffith (Respondent)

APPLICATION NUMBER:

MCDO2322-13

MATTER TYPE:

Other minor civil dispute matters

HEARING DATE:

30 April 2014

HEARD AT:

Brisbane

DECISION OF:

Adjudicator Bertelsen

DELIVERED ON:

2 May 2014

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The application is stayed pending resolution of encroachments on the parties common boundary.

CATCHWORDS:

DIVIDING FENCE – ENCROACHMENT – survey common boundary – addressing of encroachments as a priority – stay of application to fence pending resolution of encroachment issue

Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), s 35(1)(f)

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).

REASONS FOR DECISION

Application

By application filed 12 November 2013 Mr Koek seeks replacement of a dividing fence and repair of existing fence at a cost of $4,483 to be paid for by Mr Griffiths adjoining owner as to $3,565.50 and by Mr Koek as to $917.50.

Background and evidence

Mr Koek is a proprietor of 39 Dudley Street, Bardon (Lot 161) and Mr Griffiths the proprietor of 37 Dudley Street, Bardon (Lot 1). They have a north/south common boundary of 50.292 metres with Dudley Street running east/west to the northern end of the common boundary. Mr Koek asserts that Mr Griffiths has destroyed part of the existing fence. The quote from North Side Fencing attached to Mr Koek’s application is for the supply and installation of 16.5 metres timber fencing and 12 metres repairs to fencing.
On 12 March 2014 Mr Griffiths filed an application to strike out Mr Koek’s initiating application. Mr Griffiths stated he had engaged the services of a cadastral surveyor, Ken McDonald Surveys, to substantiate his assertion of encroachment by Mr Koek. Mr Griffiths produced an identification survey and survey plan dated 14 February 2014 by Ken McDonald Surveys which identified ‘several features which are encroaching on to Lot 1 along the common boundary’ ie onto Mr Griffiths property. Ken McDonald Surveys commented that ‘whilst we do not consider footings for fence posts to be encroachments, we would consider footings for retaining walls, concrete slabs, retaining walls and BBQ structures to be encroachments’. The several features disclosed as notations on the survey plan included:
Retaining wall 0.08 metres over
Retaining wall 0.2 metres over
Retaining wall 0.16 metres over
Wall 0.13 metres over
Wall 0.07 metres over
Extent of concrete footing 0.47 metres west of boundary (ie on Mr Griffiths property)
Footing 0.43 metres over
Footing 0.4 metres over
Fence post footing 0.65 metres west of boundary (ie on Mr Griffiths property)
Retaining wall 0.38 metres over
Fence post footing 0.6 metres over
Retaining wall 0.2 metres over
An encroachment notice was issued to Mr Koek on 14 February 2014 in compliance with the Survey and Mapping Infrastructure Regulation 2004 (Qld).
Additionally in late 2012 Michael Jolly Surveys Pty Ltd carried out an identification survey. The survey plan accompanying that identification survey disclosed
1.That the old concrete retaining wall erected approximately on the common boundary from the Dudley Street frontage for some 23.73 metres encroached onto Mr Koek property by up to 90 mm and onto Mr Griffiths property by up to 70 mm.
2.Some paving adjacent to Mr Koek’s dwelling encroached onto Mr Griffiths property by up to 450 mm.
3.A brick and concrete BBQ erected on Mr Koek’s property encroached onto Mr Griffiths property by up to 80 mm.
4.A galvanized garden shed erected Mr Koek’s property encroached onto Mr Griffiths property by up to 300 mm.
Mr Jolly in correspondence considered that encroachments 2, 3 and 4 could be easily moved or removed.
The dividing fence at issue here is that portion of approximately 28.5 metres to the rear (southern end) of the common boundary as opposed to the front (northern end) of the common boundary of approximately 21.5 metres and constituted by the old concrete retaining wall. The bulk of the encroaching features identified by Ken McDonald Surveys occur across the rear 28.5 metres common boundary. Encroachments 2, 3 and 4 as identified by Mr Jolly also occur across the rear 28.5 metre common boundary.
Mr Koek noted that his application is in respect of a dividing fence not encroachments; that the dividing fence does not encroach onto Mr Griffiths property; that Mr Griffiths was choosing to raise concerns of apparent encroachments. Mr Griffiths for his part asserted that the surveys results established that the dividing fence being the subject of the dispute was in fact the subject matter of the encroachment. In any event the Tribunal is satisfied that there is nothing apparent about the encroachments; that they are real and are of concern. The evidence in support of numerous encroachments is overwhelming. The fact that some of the encroachments may be relatively minor in the general scheme of things is not the point. They are still encroachments.
The Tribunal is satisfied that it would be impossible as matters presently stand to construct a wooden paling fence on the cadastrally true common boundary without removal of encroachments.
Opportunity appears to have arisen for the cadastrally true common boundary to be cleared of encroachments such as to allow access for a new dividing fence to be constructed/repaired at least in respect of the rear 28.5 metres which is the subject of this application.
In terms of any dividing fence application the front approximately 21.5 metre old concrete retaining wall section appears slightly crooked or leaning such that either party might well complain of encroachment.
The encroachment issue needs to be addressed and resolved firstly before the Tribunal in this instance would be prepared to make orders for the construction/repair of a dividing fence.
Given that the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) establishes a clear statutory right for any adjoining owner to have a common boundary fenced the proper course is for this application to be stayed until evidence acceptable to the Tribunal is produced making it clear that encroachments at least to the rear 28.5 metres of the common boundary have been removed such as to allow for the unfettered construction/repair of a dividing fence. Whilst s 35(1)(f) of the Neighbourhood Disputes (Dividing Fences and Trees) Act (NDR Legislation) provides for carrying out of any other work that is necessary for any fencing work to be completed it is also the case that issues of encroachment are within the exclusive jurisdiction of the Supreme Court. Where a dividing fence cannot be constructed on the true common boundary due to encroachments it is correct and logical given the exclusive jurisdiction of the Supreme Court that the encroachment issue be firstly addressed. Put another way the NDR Legislation presupposes a clear line for a dividing fence to be constructed except in certain circumstances not relevant here. That is not the case here.
The issue of costs shall be addressed on the further hearing of this application.
The order of the Tribunal shall be that:
1. The application is stayed pending resolution of encroachments on the parties common boundary.